ISPs face dilemmas under new porn laws

 

The Child Trafficking and Pornography Bill was introduced to the Dail last week, and is significant, not just because it seeks to prohibit ". . .the production, dissemination, handling or possession of child pornography", but also because it is one of the first Irish legislative initiatives to deal with the Internet. The Bill also seeks to deal with the serious crime of child trafficking or taking a child so that he or she may be exploited sexually. One of the most serious questions raised by the Bill is that in view of public concerns about child abuse, the nature of these offences and considering that the equivalent UK legislation dates back to 1978, why did it take so long to introduce this legislation? The Act creates several offences relating to child pornography. First, it makes it an offence to allow a child to be used for the production of pornography - this is punishable by a fine of up to £10,000 and a term of imprisonment not exceeding 10 years.

Secondly, any person who knowingly produces, distributes, prints, publishes, imports, exports, sells or shows, child pornography will commit an offence, as will anyone who encourages or knowingly causes or facilitates such activities or knowingly publishes or distributes advertisements for such materials or activities. This offence will be punishable by a fine of up to £100,000 and a term of imprisonment not exceeding 10 years.

Finally, any person who "knowingly possesses" child pornography will be guilty of an offence and on conviction may receive a fine of up to £5,000 and a term of imprisonment of up to five years. This offence will not apply to the Censor of Publications or those engaged in the prevention, investigation or prosecution of offences under the Bill. There is no exemption for those investigating other crimes such as sexual assaults or obscenity, which could lead to problems.

The Bill contains provisions allowing the Gardai to obtain warrants to enter and search premises and to seize things found there. The Bill will also allow the courts to order the forfeiture and destruction of anything used in such crimes.

The Bill will apply to visual and audio representations which include any "tape, computer disk or other thing on which the. . . representation is recorded".

"Child pornography" is defined as including "a reference to a figure resembling a person that has been generated or modified by computer graphics." These sections of the Bill are hard to fault - they may not be perfect but drafting legislation so that it will not be rendered obsolete by future technology is a difficult task.

The Irish approach is better than the UK Protection of Children Act 1978 (which refers to "photographs" and "pseudo-photographs") and at least as good as the American Federal Child Pornography Statute (which refers to "visual depictions" but defines them with reference to a list of sexual acts which is tantamount to a piece of pornography in itself).

The enforcement of such legislation is very hard, although there have been successful prosecutions for supplying such material over the Internet in the UK, such as in R-v- Fellows where the supplier was using a university computer to distribute his material.

Some idea of the extent of the problem may be gauged from the fact that the database of material included 11,650 pictures in all, 1,875 of which were pictures of minors. Alternatively the authorities may rely on chance, such as when the pop star Gary Glitter dropped his PC off for repair and the technicians allegedly found child pornography stored on it.

In view of these difficulties the authorities may be tempted to prosecute the service providers who supply access to the Internet, as has been done in Germany. As long as the Internet service provider (ISP) remains ignorant of the activities of its users, it will be safe; but the Gardai might notify the ISP that a certain site was providing child pornography and it is notorious that sites containing pornography identify themselves by their endings. So ISPs may know that they causing or facilitating the distribution, import or export of child pornography or the storage of such material, which are all offences under the Bill. However, it is technically impossible for ISPs to control what their users access, as was accepted by the US Supreme Court in Reno-v-ACLU. ISPs might be faced with a choice between prosecution or disconnecting Ireland from the Internet. It should be noted that if an offence is committed under the Bill by a company then the directors, managers secretary or other officers of the company will also be guilty of an offence if they have consented or connived in its commission or negligently allowed it to be committed.

As was recently revealed in these pages, two of Ireland's largest ISPs are now owned by Semi-State bodies - Telecom Eireann and An Post - so if the Bill becomes law we may see government ministers or at least their nominees prosecuted as the worst sort of pornography merchant.

Denis Kelleher is co-author with Karen Murray of Information Technology Law in Ireland, published by Butterworths. He is at dkeleher@indigo.ie.